93 Decision Citation: BVA 93-21400
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-35 939 ) DATE
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THE ISSUES
1. Entitlement to service connection for a right hand disorder,
including arthritis, for accrued benefit purposes.
2. Entitlement to service connection for a right hip disorder,
including arthritis, for accrued benefit purposes.
3. Entitlement to an increased evaluation for degenerative arthritis
of the cervical spine, currently evaluated as 10 percent disabling,
for accrued benefit purposes.
4. Entitlement to an increased evaluation for lumbosacral strain
with traumatic arthritis, currently evaluated as 10 percent
disabling, for accrued benefit purposes.
5. Entitlement to a total rating based upon unemployability under
the provisions of 38 C.F.R. §§ 3.340 and 4.16 (1993), for accrued
benefit purposes.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Michael A. Pappas, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1948 to September
1969. The veteran died on November [redacted] 1991. The appellant is the
widow of the veteran.
When this matter was last considered by the Board of Veteran's
Appeals (the Board) in May 1992, it was remanded to the Department of
Veterans Affairs (VA), Jackson, Mississippi, Regional Office (RO) for
additional development and the adjudication of certain issues that
were properly before the RO at the time of the veteran's death.
Following the completion of that development, an October 1992 rating
decision denied the appellant's claims of entitlement to service
connection for arthritis of the right hand and right hip and a claim
for a total rating based upon unemployability under the provisions of
38 C.F.R. 3.340 and 4.16, for accrued benefit purposes. A
supplemental statement of the case relevant to all issues that were
before the RO at the time of the veteran's death was issued in
October 1992. The appeal was returned to the Board in May 1993. The
appellant has been represented by the American Legion since December
1992. That organization submitted additional written argument in
June 1993, and the case is now ready for appellate review.
On January 7, 1992, the RO denied the appellant's claim for
entitlement to service connection for the cause of the veteran's
death. A written argument submitted by the appellant's
representative in March 1992 was construed by the Board to be a
notice of disagreement with that decision. The October 1992
supplemental statement of the case was responsive to the issue. The
appellant has not since filed a substantive appeal relevant to the
issue of entitlement to service connection for the cause of the
veteran's death. Consequently, the Board will limit consideration to
the issues shown on the preceding page.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant asserts that the RO committed error in denying increased
evaluations for the veteran's service-connected degenerative arthritis
of the cervical spine and lumbosacral strain with traumatic arthritis,
because these disorders had increased in severity prior to his death.
Specifically, the veteran was unable to squat, bend over, pick up
items, sleep on his back or sit in a chair for extended periods of
time, without pain. The veteran's final VA compensation examination
did not document these major problems since it only assessed
activities which the veteran could perform with very little trouble.
The appellant further contends that the RO committed error in denying
entitlement to service connection for arthritis of the right hand and
right hip, since the veteran had indicated prior to his death that his
arthritis had spread to those anatomical areas. Finally, the
appellant argues that the RO committed error in denying a total rating
based on individual unemployability under the provisions of 38 C.F.R.
§§ 3.340 and 4.16, since, prior to his death, the veteran had been
"unable to give an employer an honest days work" because of his
service-connected disabilities.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), has reviewed and considered all of the evidence and
material of record in the veteran's claims file(s). The Board has
determined that only those items listed in the "Certified List"
attached to this decision and incorporated by reference herein are
relevant evidence in the consideration of the veteran's claim. Based
on its review of the relevant evidence in this matter, and for the
following reasons and bases, it is the decision of the Board that the
preponderance of the evidence is against the appellant's claims of
entitlement to service connection for right hand and hip disorders,
including arthritis, for accrued benefit purposes; against the claims
for increased evaluations for the veteran's degenerative arthritis of
the cervical spine and lumbosacral strain with traumatic arthritis,
for accrued benefit purposes; and against the claim for a total rating
based on individual unemployability for accrued benefit purposes.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable disposition of
the appellant's appeal has been obtained by the RO.
2. A chronic right hand disorder, including arthritis, was not
demonstrated in service or at any time prior to the veteran's death.
3. A right hip disorder, including arthritis, was not demonstrated
in service or at any time prior to the veteran's death.
4. The veteran's degenerative arthritis of the cervical spine
resulted in no more than slight limitation of motion of the cervical
spine.
5. The veteran's lumbosacral strain with traumatic arthritis resulted
in no more than slight impairment; range of motion of the lumbar spine
was mildly limited without paravertebral muscle spasm or documented
unilateral loss of lateral spine motion.
6. The veteran's case does not represent an unusual or exceptional
disability picture; there was no showing of frequent periods of
hospitalization or marked interference with employment prior to his
death resulting from his service-connected back and neck disabilities.
7. The veteran had been assigned a 10 percent evaluation for
degenerative arthritis of the cervical spine from August 1971, and a
10 percent evaluation for lumbosacral strain with traumatic arthritis
from June 1975; These were the veteran's only service-connected
disorders.
8. Following service, the veteran owned and operated a convenience
store and was employed in equipment servicing. The veteran's
service-connected disabilities were not of sufficient severity to
have prevented him from engaging in all forms of substantially
gainful employment consistent with his educational and occupational
experience.
9. The veteran's case did not represent unusual or exceptional
circumstances that would have necessitated the referral by the RO of
the matter of a total rating based on individual unemployability to
the VA's Compensation and Pension Service.
CONCLUSIONS OF LAW
1. A right hand disorder was not incurred in or aggravated by
service, nor may arthritis of the right hand be presumed to have been
incurred in service, for accrued benefit purposes. 38 U.S.C.A.
§§ 1110, 1101, 1112, 1113, 1131, 1137, 5107(a), 5121 (West 1991);
38 C.F.R. §§ 3.303(b), 3.307, 3.309 (1993).
2. A right hip disorder was not incurred in or aggravated by service,
nor may arthritis of the right hip be presumed to have been incurred
in service, for accrued benefit purposes. 38 U.S.C.A. §§ 1110, 1101,
1112, 1113, 1131, 1137, 5107(a), 5121; 38 C.F.R. §§ 3.307, 3.309.
3. An evaluation in excess of 10 percent for the veteran's
degenerative arthritis of the cervical spine, for accrued benefit
purposes, is not warranted. 38 U.S.C.A. §§ 1155, 5107(a), 5121 (West
1991); 38 C.F.R. § 3.321(b)(1), Part 4, Diagnostic Code 5003-5290
(1993).
4. An evaluation in excess of 10 percent for lumbosacral strain with
traumatic arthritis, for accrued benefit purposes, is not warranted.
38 U.S.C.A. §§ 1155, 5107(a), 5121; 38 C.F.R. § 3.321(b)(1), Part 4,
§ 4.7, Diagnostic Code 5295-5010-5292 (1993).
5. A total rating on the basis of individual unemployability is not
warranted, for accrued benefit purposes. 38 U.S.C.A. §§ 1155,
5107(a), 5121; 38 C.F.R. §§ 3.321, 3.340, 3.341, Part 4, § 4.16
(1993).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
We have found that the claims presented are "well grounded" within the
meaning of 38 U.S.C.A. § 5107(a). That is, we find that they are not
inherently implausible. We are also satisfied that all relevant facts
have been properly developed. Further, the record is devoid of any
indication that there is in existence additional pertinent evidence
that has not been obtained. No further assistance to the appellant is
required to comply with a duty to assist mandated by 38 U.S.C.A.
§ 5107(a).
Prior to his death, the veteran had been assigned a 10 percent
evaluation for degenerative arthritis of the cervical spine from
August 1971, and a 10 percent evaluation for lumbosacral strain with
traumatic arthritis from June 1975. Claims for increased evaluations
for these disorders were pending at the time of his death.
The relevant medical evidence consists of the veteran's service
medical records, the report of his initial VA compensation examination
in April 1971, the report of an October 1990 VA compensation
examination and VA outpatient treatment records from February 1991 to
September 1991.
The service medical records show that the veteran had a history of
recurrent back pain. Although the records indicate that the pain was
primarily in the low back, an April 1963 x-ray study noted a "fairly
prominent occipital spur present" in the cervical spine. The report
provided a clinical history of "recurrent episodes of pain in neck
usually preceded by 'popping' sensation, muscle spasms and
tenderness." Upon service separation, in June 1969, the veteran's
back was evaluated and the examiner's impression was "physiological
low back pain." X-ray findings showed minimal degenerative arthritic
changes.
With respect to the veteran's right hand and right hip, the service
medical records show that in July 1954, the veteran reported for
treatment for a cut on the little finger of the right hand resulting
from having been hit by a baseball. Following conservative treatment,
including a change of dressing three days later, the wound healed
without residuals. Other than that incident, the service medical
records do not reflect a right hand or hip disorder, including
arthritis. The report of the veteran's retirement examination in May
1969 contains no reference to such disorders.
The veteran's initial VA compensation examination, in April 1971,
noted, by history, that the veteran had had an in-service back injury
to the dorsal spine in 1958 but had since experienced consistent pain
in his low back. The veteran reported that he was a self-employed
owner and operator of a convenience store. The veteran did not report
any complaints with respect to his right hip or right hand and no
abnormalities were noted by the examiner. The final diagnoses were:
(1) Osteoarthritis, cervical spine;
(2) Degenerative disc disease, C-5; and (3) Scoliosis of the dorsal
spine, convex to right.
In November 1974, the veteran was hospitalized by the VA for a few
days for lumbosacral strain that reportedly improved rapidly and
dramatically.
The veteran reported for the October 1990 VA compensation examination
complaining of chronic low back pain of intermittently varying
severity. He indicated that aggravating factors included bending,
lifting, twisting and stooping. Prolonged sitting, standing, and
lying down were also said to cause pain. He described pain radiating
into his right upper leg. No numbness or tingling was noted in the
lower extremities. The veteran's described his neck as asymptomatic.
Medications included Motrin.
Upon examination, it was noted that the veteran walked somewhat
slowly, keeping his back rather erect and rigid. Examination of the
neck revealed right and left lateral turning of 65 degrees. He had 45
degrees of flexion and 35 degrees of extension. There was no
tenderness or spasm noted in the veteran's neck. The upper extremity
and neurological examination was unremarkable. Examination of the
back revealed that the veteran was able to stand erect. There was no
evidence of paravertebral muscle spasm or tenderness to palpation.
Range of motion in the lumbar spine was flexion of 75 degrees and
extension of 35 degrees. Neurological evaluation revealed the supine
straight leg raising test was negative for reproduction of radicular
pain. The veteran performed a good heel and toe walk and could
perform a full squat
and arise again. Reflexes and sensation were intact. The clinical
impressions were: (1) Chronic low back pain with history of
lumbosacral strain. Minimal degenerative changes. (2) Degenerative
arthritis of the cervical spine--minimally symptomatic.
X-rays of the cervical spine revealed the alignment to be
satisfactory. There was a moderate narrowing of the intervertebral
disk spaces at C5/6 and C 6/7 levels. The appearance was consistent
with underlying degenerative changes. Minimal anterior and posterior
degenerative spurs were also seen at those levels. The upper part of
the cervical spine was normal in appearance. X-rays of the lumbar
spine revealed the alignment to be satisfactory. Intervertebral disk
spaces were within normal limits. The pedicles were intact. Minimal
anterior and lateral degenerative spur formations were seen at L3, L4,
and L5 levels. No other significant abnormality was seen. The
remainder of the examination was within normal limits.
Pertinent VA outpatient treatment records indicate that the veteran
was seen in February 1991 for his low back pain that had been
exacerbated the day before by heavy lifting. Examination revealed
negative straight leg raising. Motor evaluation was 5/5, sensory was
intact and there was no spasm noted. The examiner's assessment was
chronic low back pain. The veteran was to lose weight, take Motrin
for pain, return to the clinic as necessary and take Elavil. These
records also clearly indicate that the veteran had a history of peptic
ulcer disease. The veteran died in November 1991. A Certificate of
Death issued on the date of his death noted that the immediate cause
of death was "Sudden Cardiac Death" due to or as a consequence of
"Coronary Artery Disease." It was also noted that the veteran had
occupational experience in equipment service with International
Harvester Corp.
Right Hand and Right Hip Disorders, Including Arthritis
Under the law, service connection for a right hand or right hip
disorder may be granted if it resulted from a disease or injury
incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131.
In addition, the veteran served continuously for ninety (90) or more
days during a period of war or during peacetime after December 31,
1946; therefore, if arthritis of the right hand or right hip became
manifest to a degree of 10 percent within one year from the date of
his termination of such service, that condition would be presumed to
have been incurred in service, even though there was no evidence of
such disease during the period of service. Such a presumption would
be rebuttable, however, by affirmative evidence to the contrary. 38
U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
For the showing of chronic disease in service there is required a
combination of manifestations sufficient to identify the disease
entity, and sufficient observation to establish chronicity at the
time, as distinguished from merely isolated findings or a diagnosis
including the word "chronic." Continuity of symptomatology is
required where the condition noted during service is not, in fact,
shown to be chronic or where the diagnosis of chronicity may be
legitimately questioned. When the fact of chronicity in service is
not adequately supported, then a showing of continuity after discharge
is required to support the claim. 38 C.F.R. § 3.303(b).
Upon the death of a veteran, periodic monetary benefits to which
he/she was entitled on the basis of evidence in the file at date of
death, and due and unpaid for a period of not more than 1 year prior
to death, may be paid to the living person first listed as follows:
(1) His/Her spouse, (2) His/Her children (in equal shares), (3)
His/Her dependent parents (in equal shares). 38 U.S.C.A. § 5121.
The evidence of record shows only that the veteran experienced a cut
on the little finger of his right hand while on active duty; however,
this did not require sutures and was not indicative of a chronic
condition. There is no evidence of continuity of symptomatology which
would show the presence of a chronic right hand disorder in service or
later. Clearly, the right little finger cut was acute and transitory,
resolving without residual disability. 38 C.F.R. § 3.303(b). No
right hand disorder, including residuals of the finger cut, was noted
on examination for retirement from service or thereafter. With
respect to the veteran's right hip, there is no record of complaints
or abnormal findings during service or subsequently. We can only
conclude that neither a right hand disorder nor a right hip disorder
was incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131.
By the same token, the presence of arthritis in the veteran's right
hand or right hip was not documented during service, within one year
following the veteran's separation from service, or at any time prior
to his death. Accordingly, service connection for disability,
including arthritis, of the right hand or right hip, for accrued
benefits purposes, is not warranted. 38 U.S.C.A. §§ 1110, 1101, 1112,
1113, 1131, 1137, 5107(a), 5121; 38 C.F.R. §§ 3.303(b), 3.307, 3.309.
Degenerative Arthritis of the Cervical Spine
Under the law, disability evaluations are determined by the
application of a schedule of ratings which is based on average
impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Separate diagnostic codes identify the various disabilities. Where
there is a question as to which of two evaluations shall be applied,
the higher evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating. Otherwise,
the lower rating will be assigned. 38 C.F.R. § 4.7.
The RO has previously assigned a 10 percent evaluation for the
veteran's degenerative arthritis of the cervical spine, under
Diagnostic Code 5003-5290 of VA's Schedule for Rating Disabilities,
38 C.F.R. Part 4.
Under the provisions of Diagnostic Code 5003, degenerative arthritis,
substantiated by X-ray findings, will be rated on the basis of
limitation of motion under the appropriate diagnostic codes for the
specific joint or joints involved. Limitation of motion must be
objectively confirmed by findings such as swelling, muscle spasm, or
satisfactory evidence of painful motion. With any form of arthritis,
painful motion is an important factor of disability. The intent of
the schedule is to recognize painful motion with joint or
periarticular pathology as productive of disability. It is the
intention to recognize actually painful, unstable, or maligned joints,
due to healed injury, as entitled to at least the minimum compensable
rating for the joint. 38 C.F.R. § 4.59 (1992). Under Diagnostic Code
5290, limitation of motion of the cervical spine when slight is
considered 10 percent disabling; moderate limitation is considered 20
percent disabling; and severe limitation is considered 30 percent
disabling.
A careful review of the medical record fails to disclose the requisite
manifestations for an increased evaluation of the veteran's
degenerative arthritis of the cervical spine, under all pertinent
Diagnostic Codes. It is clear that the veteran's cervical spine
disability is not productive of the requisite limitation of motion to
warrant an evaluation in excess of 10 percent. 38 C.F.R. Part 4,
Diagnostic Code 5003-5290. The last VA compensation examination found
the veteran's cervical spine to be essentially asymptomatic and the
range of motion testing reflected no more than slight limitation of
motion in the cervical spine. Thus an increased evaluation is not
warranted. A 10 percent rating contemplates any manifestation of pain
on motion described by the veteran under the provisions of 38 C.F.R.
§ 4.40 and § 4.59 (1992).
Lumbosacral Strain with Traumatic Arthritis
With respect to the veteran's lumbosacral strain with traumatic
arthritis, the RO had previously assigned a 10 percent evaluation for
that disability under Diagnostic Codes 5010, 5292, and 5295 of VA's
Schedule for Rating Disabilities, 38 C.F.R. Part 4. Under Diagnostic
Code 5010, arthritis due to trauma, substantiated by
X-ray findings, will be rated as degenerative arthritis. As discussed
above, degenerative arthritis, established by X-ray findings, will be
rated on the basis of limitation of motion under the appropriate
diagnostic codes for the specific joint of joints involved. 38 C.F.R.
Part 4, Diagnostic Code 5003, 5010. Under Diagnostic Code 5292,
limitation of motion of the lumbar spine when slight is 10 percent
disabling. A 20 percent evaluation requires moderate limitation of
motion, and a 40 percent evaluation requires severe limitation of
motion; this is the highest schedular rating assignable under this
diagnostic code.
It is clear from the medical record that the veteran demonstrated no
more than slight limitation of motion of the lumbar spine. Flexion
was 75 degrees and extension was 35 degrees. Clearly, the veteran had
full extension and only slightly limited flexion. Therefore, based
upon these criteria an increased evaluation is not warranted. A
10 percent rating contemplates any pain on motion described by the
veteran and covered under the provisions of 38 C.F.R. § 4.40 and
§ 4.59.
In the alternative, the veteran could be rated on the basis of
lumbosacral strain. Under Diagnostic Code 5295, a 10 percent
evaluation is warranted for lumbosacral strain where there is
characteristic pain on motion. A 20 percent evaluation requires
muscle spasm on extreme forward bending and unilateral loss of lateral
spine motion in a standing position, neither of which is shown. A 40
percent evaluation requires severe lumbosacral strain manifested by
listing of the whole spine to the opposite side, a positive
Goldthwaite's sign, marked limitation of forward bending in standing
position, loss of lateral motion with osteoarthritic changes, or
narrowing or irregularity of the joint space. A 40 percent evaluation
is also warranted if only some of these manifestations are present, if
there is also abnormal mobility on forced motion; this is the highest
schedular rating assignable under Diagnostic Code 5295.
The record demonstrates that the veteran complained of chronic pain of
the lumbar spine. The 10 percent evaluation assigned to the veteran
prior to his death clearly contemplates such symptomatology in
accordance with Diagnostic Code 5292. What was not demonstrated,
however, was the requisite objective manifestations for a higher
evaluation. Both the October 1990 VA compensation examination and the
February 1992 outpatient treatment examination specifically noted the
absence of muscle spasm. No unilateral loss of spine motion was
demonstrated. Consequently, there is no basis for assignment of an
evaluation in excess of 10 percent under Diagnostic Codes 5292.
We have also considered whether the veteran's disability picture
warrants an extraschedular evaluation for either the neck or low back
disability under the provisions of 38 C.F.R. § 3.321(b)(1). However,
the evidence fails to document such an exceptional or unusual
disability picture in regard to either service-connected disability,
with such factors as marked interference with employment or frequent
periods of hospitalization, as to render impractical the application
of the regular schedular standards. Id. We conclude that the
preponderance of the evidence is against the veteran's claim for an
increased evaluation. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321 (b),
Part 4, Codes 5003, 5010, 5290, 5292, 5295.
Total Disability Rating
Under the law, total disability ratings for compensation may be
assigned where the schedular rating for the service-connected
disability or disabilities is less than 100 percent when it is found
that the service-connected disabilities are sufficient to produce
unemployability without regard to advancing age. 38 C.F.R. §§ 3.340,
3.341, 4.16.
We note that a combined evaluation of 20 percent has been assigned for
the veteran's two service-connected back disorders analyzed above.
These were his only service-connected disabilities. We further note
that as to the veteran's original evaluation for compensation benefits
he indicated that he had completed a high school education.
Thereafter, the record indicates that following retirement from
service he was the owner and operator of a convenience store and also
worked in equipment servicing.
In determining entitlement to a total rating for compensation purposes
based on individual unemployability, where the appellant is less than
totally disabled under the schedular criteria, it must be shown that
he is, in fact, unable to obtain or maintain substantially gainful
employment by reason of the service-connected disabilities. Prior to
his death, the veteran argued that he was "unable to give an employer
an honest days work" because of his service-connected disabilities.
It is unknown whether the veteran was gainfully employed at the time
of his death. Regardless, it must be understood that being unemployed
is not synonymous with a finding of unemployability. The Board may
not consider the veteran's age or his multiple non-service-connected
disabilities in deciding this issue. Despite the presence of non-
service-connected physical disorders and the veteran's advancing age,
we must determine the impact of the service-connected disabilities
alone. This must be done considering the totality of the
circumstances, including the nature and extent of the service-
connected disabilities, and their combined effect on the veteran's
industrial potential in light of his education and occupational
background.
We acknowledge that the veteran's service-connected disabilities
resulted in pain and may have limited his freedom of movement.
However, as shown by the medical evidence, he retained relatively good
range of spinal motion, without findings of associated lower extremity
difficulties. While the veteran may have been precluded by his
service-connected disabilities from the performance of heavy labor,
there was a range of employment, consistent with his industrial
background, which he could have performed, given the nature of his
service-connected disabilities. There is no evidence in the record
that the veteran was unable to walk or stand erect, for instance. A
careful review of all the medical evidence of record, results in the
Board's conclusion that the veteran's service-connected disabilities
were not of sufficient severity prior to his death as to preclude his
engaging in all types of substantially gainful employment. 38 C.F.R.
§§ 3.321, 3.340, 3.341, 4.16. Inasmuch as the veteran's service-
connected disabilities did not meet the schedular requirements stated
in 38 C.F.R. § 4.16(a), the provisions of 38 C.F.R. § 4.16(b) must be
considered. Under that subsection, if a veteran is determined to be
unemployable by reason of his service-connected disability but has
failed to meet the percentage standards set forth in 38 C.F.R.
§ 4.16(a), the RO should submit the case to the Director of
Compensation and Pension Service for the purpose of extra-schedular
consideration. While the RO did not refer the matter of a total
rating based on individual unemployability to the VA's Compensation
and Pension Service, there are no exceptional circumstances that would
have warranted such referral and clearly the veteran was not
unemployable due to his service-connected disabilities. Accordingly,
the RO's failure to refer the case constitutes harmless error.
38 C.F.R. § 4.16(b) (1993).
ORDER
Service connection for a right hand disorder, including arthritis,
for accrued benefit purposes, is denied.
Service connection for a right hip disorder, including arthritis, for
accrued benefit purposes, is denied.
An increased evaluation for degenerative arthritis of the cervical
spine, for accrued benefit purposes, is denied.
An increased evaluation for lumbosacral strain with traumatic
arthritis, for accrued benefit purposes, is denied.
A total rating based upon individual unemployability, for accrued
benefit purposes, is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
JANE E. SHARP
PHILIP E. WRIGHT
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans'
Appeals Section, upon direction of the Chairman of the Board, to
proceed with the transaction of business without awaiting assignment
of an additional Member to the Section when the Section is composed of
fewer than three Members due to absence of a Member, vacancy on the
Board or inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section proceed with
the transaction of business, including the issuance of decisions,
without awaiting the assignment of a third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a
decision of the Board of Veterans' Appeals granting less than the
complete benefit, or benefits, sought on appeal is appealable to the
United States Court of Veterans Appeals within 120 days from the date
of mailing of notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision which
you have received is your notice of the action taken on your appeal
by the Board of Veterans' Appeals.